The opinion
JAMAL WRIGHT, ET AL * NO. 2019-C-0499
VERSUS *
COURT OF APPEAL
THE STATE OF LOUISIANA *
ON BEHALF OF JAMIE FOURTH CIRCUIT
ALLEYN, M.D., ASHLEY VAN *
WORMER, M.D., MONIQUE STATE OF LOUISIANA
SUTHERLAND, M.D., MEGAN *******
BINA, D.O. AND ASHELY M
HIRSCH, M.D.
APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-11734, DIVISION “F”
Honorable Christopher J. Bruno, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love,
Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase)
LOVE, J., DISSENTS AND ASSIGNS REASONS
LEDET, J., CONCURRING WITH REASONS
CHASE, J., CONCURS FOR THE REASONS ASSIGNED
BY JUDGE LEDET
Jeff Landry, Attorney General
William David Coffey, Appeals Counsel
Lucie Thornton, Assistant Attorney General
Louisiana Department of Justice
Litigation Division
1450 Poydras Street, Suite 900
New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANTS/RELATORS
Danatus N. King
2475 Canal Street, Suite 308
New Orleans, Louisiana 70119
COUNSEL FOR PLAINTIFF/RESPONDENT
WRIT GRANTED; RULING REVERSED
AUGUST 5, 2020
SCJ
JFM
Relators/Defendants, the State of Louisiana, through the Board of
Supervisors of Louisiana State University and Agriculture (“Board of
Supervisors”), on behalf of Jamie Alleyn, M.D., Ashley Van Wormer, M.D.,
Monique Sutherland, M.D., Megan Bina, D.O., and Ashley M. Hirsch, M.D., seek
review of the trial court’s May 8, 2019 judgment denying their peremptory
exception of prescription.
For the reasons that follow, based upon this Court’s relevant jurisprudence,
particularly Velasquez v. Chesson, 13-1260 (La. App. 4 Cir. 10/8/14), 151 So.3d
812, 814, we grant Relators’ writ, reverse the trial court’s judgment, maintain
Relators’ exception of prescription, and dismiss Plaintiff’s claims with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2018, Plaintiff/Respondent, Jamal Wright filed a medical
malpractice suit on behalf of Janaya Nicole Wright, his daughter, alleging that
Janaya’s mother, Nicole Phillips, suffered a brain injury, went into a coma, and
died after giving birth to Janaya at Touro Infirmary. The petition named the
following defendants: Touro Infirmary, Dr. Jaime Alleyn, Dr. Ashley Van
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Wormer, Dr. Monique Sutherland, Megan Bina, D.O., Dr. Ashley Hirsch, Dr.
Davey L. Prout, and Kimberly Guidry, R.N., alleging that these defendants were
employed by Touro. Although the physician defendants were State employees,
Plaintiff did not name the State of Louisiana or the Board of Supervisors in the
original petition, but Plaintiff did request service on the individually named
defendants on or about March 6, 2018. The physician defendants filed an
exception of insufficiency of citation and service of process. Prior to ruling on that
exception, the trial court permitted Plaintiff to file an amended petition. Plaintiff
filed the amended petition on August 18, 2018, adding the Board of Supervisors as
a defendant; and plaintiff then requested service upon the Board of Supervisors.
Subsequent to the amending petition being filed, the trial court denied the
exception of insufficiency of citation and service of process, and the physician
defendants sought supervisory review of that ruling.
Upon review, this Court reversed the trial court’s ruling on the exception of
insufficiency of citation and service of process. Wright v. State, 18-0825 (La. App.
4 Cir. 10/31/18), 258 So.3d 846, writ denied sub nom. Wright v. State o/b of Alleye,
18-1931 (La. 1/28/19), 262 So.3d 902. This Court found that the applicable
statutes, La. R.S. 13:5107 and La. R.S. 39:1538, required that service on a state
employee must be requested on one of three designated parties for service of
process: (1) the head of the department for the Board of Supervisors; (2) the Office
of Risk Management; or (3) the Attorney General of Louisiana. Since Plaintiff
only requested service of the original petition on the physician defendants, this
Court held that the trial court erred in denying the exception of insufficiency of
citation and service of process. Wright, 18-0825, pp. 4-6, 258 So.3d at 848-49.
2
Thereafter, on March 13, 2019, Relators filed a peremptory exception of
prescription. Following a hearing on the exception, the trial court rendered
judgment overruling Relators’ exception of prescription and issued written reasons
for judgment. Relators now seek review of the trial court’s May 8, 2019 judgment.
DISCUSSION
Standard of Review
“A peremptory exception generally raises a purely legal question.” Wells
Fargo Fin. Louisiana, Inc. v. Galloway, 17-0413, p. 7 (La. App. 4 Cir. 11/15/17),
231 So.3d 793, 799-800. However, the standard of review of the trial court’s
ruling on a peremptory exception of prescription depends on whether evidence is
introduced at the trial on the exception. Id. When no evidence is introduced, a de
novo standard applies to determine whether the trial court’s decision was legally
correct; and, “[i]n this context, ‘the exception of prescription must be decided on
the facts alleged in the petition, which are accepted as true.’” Id., 17-0413, p. 8,
231 So.3d at 800 (quoting Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.
5/21/08), 983 So.2d 84, 88). However, when evidence is introduced, then the
manifestly erroneous standard of review applies. Wells Fargo, 17-0413, p. 8, 231
So.3d at 800.
Prescription
Relators contend that prescription had run before August 18, 2018, when the
amended petition was filed, because naming only the individual physicians and
healthcare providers as defendants in the original petition did not preserve
Plaintiff’s claims against Relators. First, Relators argue that the original petition
did not interrupt prescription and the amended petition cannot relate back to that
timely-filed, original petition because Medical Malpractice Act does not allow for
3
relation back of pleadings for medical malpractice claims. Additionally, Relators
argue that Plaintiff’s failure to request or accomplish service on the proper parties
within the ninety days of the filing of the petition, as required by La. R.S.. 13:5107
and La. R.S. 39:1538, warrants dismissal without prejudice.
Interruption and Relation Back
Relators acknowledge that La. C.C. art. 2324 provides that “[i]nterruption of
prescription against one joint tortfeasor is effective against all joint tortfeasors”,
but Relators submit that Plaintiff did not allege that the Board of Supervisors were
joint tortfeasors with any of the timely named defendants, but rather alleged
incorrectly that the physicians and healthcare providers were employees of Touro.
Relators thus argue that the amended petition cannot relate back to the original
petition to interrupt prescription because the amended petition named a wholly new
defendant—the Board of Supervisors. Moreover, Relators argue that relation back
cannot apply to these medical malpractice claims. We agree.
As discussed by this Court in Santiago v. Tulane Univ. Hosp. & Clinic, 12-
1095, pp. 9-13 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 682-84, the relation back
principles of La. C.C.P. art. 1153 do not interrupt prescription in cases brought
pursuant to the Medical Malpractice Act (“MMA”). In Santiago, the plaintiff filed
a complaint with the Louisiana Patient’s Compensation Fund and Oversight Board
(“PCF”) against her surgeon, Dr. Robert Barrack; an unidentified x-ray technician;
and their alleged employer/contractor, Tulane University Hospital and Clinic,
alleging that plaintiff received fall-related injuries following hip replacement
surgery on April 14, 2003. The plaintiff filed the PCF complaint on April 8, 2004;
and the medical review panel rendered its decision on July 10, 2006. On July 21,
2006, the plaintiff filed a medical malpractice suit against the same parties named
4
in the PCF complaint and setting forth the same allegations. Subsequently, on
March 14, 2007, the plaintiff filed a supplemental and amending petition for
damages naming several new defendants for the first time, including four
additional physicians; the Administrators of Tulane Educational Fund, as the
employer of the named physicians; and four other healthcare providers. In
response, the Administrators and the five physician defendants filed an exception
of peremption, arguing, inter alia, that they should be dismissed with prejudice
because the PCF complaint and the original petition did not name them and could
not suspend prescription against them. The trial court granted the exception,
dismissing the petitions with prejudice. On appeal, the plaintiff argued that the
trial court should have applied La. C.C.P. art. 11531 to extend La. R.S. 9:5628’s
three-year limitation, regardless of whether the statute is prescriptive or peremptive
in nature. In addressing the plaintiff’s arguments, this Court considered Warren v.
Louisiana Med. Mut. Ins. Co., 07-0492 (La. 12/2/08), 21 So.3d 186, on reh’g (June
26, 2009).
In Warren, the Louisiana Supreme Court held that the MMA has no rules
allowing relation back of pleadings for medical malpractice claims:
LeBreton [v. Rabito, 97-2221 (La. 7/8/98), 714 So. 2d 1226] and
Borel stand for the proposition that medical malpractice claims are
governed by the specific provisions of the Medical Malpractice Act
regarding suspension of prescription to the exclusion of the general
codal articles on interruption of prescription. These cases are equally
applicable here. The expressed reasoning behind the holding in
LeBreton was that if the general rules on interruption were to apply to
a medical malpractice action, “then the prescription and suspension
provisions provided in the Medical Malpractice Act will be written
out,” and “[t]herein lies the conflict.” LeBreton, supra at 1230.
Although La. C.C.P. art. 1153 does not “interrupt” prescription as did
1
La. C.C.P. art. 1153 provides, “[w]hen the action or defense asserted in the amended petition or
answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth
in the original pleading, the amendment relates back to the date of filing the original petition.”
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the general codal articles in LeBreton and Borel, “relation back” of an
untimely filed amended petition directly avoids the application of
prescription by allowing a claim that would have otherwise prescribed
to proceed. The effect of this interference is that if relation back is
allowed, the “prescription and suspension provisions provided in the
Medical Malpractice Act will be written out,” which, as we
recognized in LeBreton, presents “a conflict.” LeBreton, supra at
1230. Further, the application of La. C.C.P. art. 1153 “would
potentially subject a health care provider to an indefinite period of
prescription, ... a result clearly at odds with the purpose of the [Act].”
Borel, supra at 68, n. 12. Because medical malpractice actions are
governed by the specific provisions of the Act regarding prescription
and suspension of prescription, under Borel, we find that any general
codal article which conflicts with these provisions may not be applied
to such actions in the absence of specific legislative authorization in
the Act. The Act has no rules allowing relation back of pleadings
for medical malpractice claims. The application of Article 1153
would permit the adding of a[] plaintiff subsequent to the expiration
of the three-year period provided for in La. R.S. 9:5628, and would
read out of the statute the prescription and suspension period
provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47; therefore, La.
C.C.P. art. 1153 may not be applied to the medical malpractice action
under the reasoning of LeBreton and Borel.
Santiago, 12-1095, p.13, 115 So. 3d at 684 (quoting Warren, 07-0492, 21 So. 3d at
207–08 (footnote omitted)(emphasis added). Consequently, in Santiago, this Court
held that the plaintiff’s claims in her supplemental and amending petition were
prescribed as a matter of law, because they were filed more than three years after
the date of the alleged malpractice, in violation of La. R.S. 9:5628.
In consideration of this Court’s analysis in Santiago, we find the MMA has
no rules allowing relation back of pleadings for medical malpractice claims and,
therefore, in the instant case, the amended medical malpractice petition naming
wholly new defendants cannot relate back to the original petition. In addition,
Plaintiff’s timely-filed original petition did not allege that the Board of Supervisors
defendants named in the amended petition were joint tortfeasors with any of the
individually named healthcare providers or physicians named as defendants in the
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original petition. Thus, the amended petition does not name joint tortfeasors for
which prescription would be interrupted, pursuant to La. C.C. art. 2324.
Requirements of La. R.S. 13:5107 and La. R.S. 39:1538
Additionally, Relators argue that Plaintiff was required, pursuant to La. R.S.
13:5107 and La. R.S. 39:1538, to timely serve the head of the department for the
Board of Supervisors, the Office of Risk Management, and the Attorney General,
but failed to do so.
La. R.S. 13:5107(A) and (D) provide, in pertinent part:
A. (1) In all suits filed against the state of Louisiana or a state agency,
citation and service may be obtained by citation and service on the
attorney general of Louisiana, or on any employee in his office above
the age of sixteen years, or any other proper officer or person,
depending upon the identity of the named defendant and in
accordance with the laws of this state, and on the department, board,
commission, or agency head or person, depending upon the identity of
the named defendant and in accordance with the laws of this state, and
on the department, board, commission, or agency head or person,
depending upon the identity of the named defendant and the identity
of the named board, commission, department, agency, or officer
through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety
days of filing suit. This shall be sufficient to comply with the
requirements of Subsection D of this Section and also Code of Civil
Procedure Article 1201(C).. . .
*****
D. (1) In all suits in which the state, a state agency, or political
subdivision, or any officer or employee thereof is named as a party,
service of citation shall be requested within ninety days of the
commencement of the action or the filing of a supplemental or
amended petition which initially names the state, a state agency, or
political subdivision or any officer or employee thereof as a party.
This requirement may be expressly waived by the defendant in such
action by any written waiver. If not waived, a request for service of
citation upon the defendant shall be considered timely if requested on
the defendant within the time period provided by this Section,
notwithstanding insufficient or erroneous service.
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(2) If service is not requested by the party filing the action within the
period required in Paragraph (1) of this Subsection, the action shall be
dismissed without prejudice, after contradictory motion as provided in
Code of Civil Procedure Article 1672(C), as to the state, state agency,
or political subdivision, or any officer or employee thereof, upon
whom service was not requested within the period required by
Paragraph (1) of this Subsection.2
In support of their argument in this case, Relators rely on this Court’s
holding in Velasquez, supra, wherein this Court affirmed the trial court’s dismissal
of a plaintiff’s medical malpractice action for failure to request citation of the head
of the department for the Board of Supervisors, the Office of Risk Management, or
the Attorney General within ninety days of filing suit.
In Velasquez, on April 4, 2007, Mirna Velasquez requested a Medical
Review Panel from the Louisiana Division of Administration regarding allegations
against Ralph R. Chesson, M.D. Velasquez alleged that after childbirth, Dr.
Chesson performed a tubal ligation at University Hospital, but a year after the
operation, she became pregnant. Like Respondents in this case, the Division of
2
La. C.C.P. art. 1201(C) provides, in pertinent part:
Service of the citation shall be requested on all named defendants within
ninety days of commencement of the action. . . . The defendant may expressly
waive the requirements of this Paragraph by any written waiver. The requirement
provided by this Paragraph shall be expressly waived by a defendant unless the
defendant files, in accordance with the provisions of Article 928, a declinatory
exception of insufficiency of service of process specifically alleging the failure to
timely request service of citation.
La. C.C.P. art. 1672(C) provides, in pertinent part:
A judgment dismissing an action without prejudice shall be rendered as to
a person named as a defendant for whom service has not been requested within
the time prescribed by Article 1201(C) or 3955 upon the sustaining of a
declinatory exception filed by such defendant, or upon contradictory motion of
any other party, unless good cause is shown why service could not be requested,
in which case the court may order that service be effected within a specified time.
8
Administration notified Velasquez by letter that Dr. Chesson was a qualified state
health care provider and subsequently issued a Certificate of Qualification.
After the Medical Review Panel concluded that Dr. Chesson met the
standard of care, Velasquez filed a petition on April 5, 2010. Dr. Chesson filed an
exception of insufficiency of service of process, asserting that the State was not
properly served within ninety days of Velasquez filing suit, which the trial court
granted. Velasquez appealed, arguing that Dr. Chesson was not sued in his official
capacity as qualified state health care provider.
This Court recognized that La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C)
provide that “service shall be requested within ninety days of filing suit where the
State or a state agency, officer, or employee is a named party.” Velasquez, 13-
1260, pp. 2-3, 151 So. 3d at 814 (emphasis added). This Court also noted that the
Code of Civil Procedure provides that “unless good cause is shown, the action
shall be dismissed as to the party for whom service has not been timely requested
upon sustaining said party's declinatory exception pursuant to La. C.C.P. art.
1672(C)”, and “[w]hile a definition for ‘good cause’ is not provided in art.
1672(C), our jurisprudence has held that ‘mere confusion over a party's proper
service information is not a sufficient basis for good cause.’” Velasquez, 13-1260,
p. 3, 151 So. 3d at 814 (quoting Johnson v. Univ. Med. Ctr. in Lafayette, 07–1683,
p. 2 (La.11/21/07), 968 So.2d 724, 725)(footnotes omitted).
This Court also recognized the reason for the ninety-day requirement was to
provide ample notice to defendants:
As this Court has recognized, the rationale behind the ninety-
day notice requirement is obvious: “to insure that the defendant
receives notice of the suit within a reasonable time after it has been
commenced.” [Llopis v. Louisiana State Bd. of Dentistry, [20]13–
0659, p. 5 (La. App. 4 Cir. 6/11/14), 143 So.3d 1211, 1214] (quoting
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Anderson v. Norfolk Southern Railway Company, [20]02–230, p. 4
(La. App. 4 Cir. 3/27/02), 814 So.2d 659, 661). Thus, unless service is
made on an authorized recipient, it will be deemed insufficient and
improper. Tranchant v. State, [20]08–0978, p. 10 (La.1/21/09), 5
So.3d 832, 837 (“[P]laintiffs are strictly held to the obligation of
serving the correct agent for service of process, [ ] as well as to the
obligation of serving the named state defendants within the time
period specified by La. R.S. 13:5107(D)(1).”) (citing Barnett v.
Louisiana State Univ. Med. Ctr.–Shreveport, [20]02–2576, p. 1
(La.2/7/03), 841 So.2d 725, 726).
Velasquez, 2013-1260, pp. 3-4, 151 So. 3d at 814 (emphasis added).
Because University Hospital was a state-owned facility under the
supervision and management of the Board of Supervisors, this Court concluded
that “Dr. Chesson is a state-employed physician and at least one of the above
entities/persons [the head of the department for the Board of Supervisors, the
Office of Risk of Management, or the Attorney General] should have been
served.” Velasquez, 13-1260, p. 4, 151 So. 3d at 815 (emphasis added).
Additionally, this Court noted that Velasquez “was well aware and amply
advised of Dr. Chesson’s status as a qualified health care provider” when the
Division of Administration notified her by letter of same and issued a Certificate of
Qualification. Id. This Court also found that the plaintiff was aware of Dr.
Chesson’s status because the State of Louisiana, through the Board of Supervisors,
on behalf of LSU Health Sciences Center, LSU Health Care Services Division and
Ralph Chesson, M.D., filed discovery requests, and the plaintiff also had her
surgery at University Hospital, a state-owned facility.
Accordingly, this Court held that Velasquez’s claim that she sued Dr.
Chesson individually3 was “without merit” because “Dr. Chesson was a qualified
3
This Court noted that even if Velasquez’s argument regarding suing Dr. Chesson individually
had merit, she served Dr. Chesson at the address for Louisiana State University Lions Center
Clinic, which was 1) not Dr. Chesson’s correct address; and 2) was “completely contrary to
10
state health care provider at the time the alleged malpractice occurred; therefore,
La. R.S. 13:5107 and La. R.S. 39:1538 are applicable.” Id., 13-1260, p. 5, 151 So.
3d at 815. Thus, Velasquez’s “failure to timely effectuate service on the proper
parties warranted dismissal of the suit as plaintiff advanced no compelling reason
for her failure to ascertain proper service.”4 Id.
Subsequently, in Wright v. State, 18-0825 (La. App. 4 Cir. 10/31/18), 258
So.3d 846, writ denied sub nom. Wright v. State o/b of Alleye, 18-1931 (La.
1/28/19), 262 So.3d 902, the prior writ opinion in this case, this Court relied on
Velasquez to find that the trial court erred in denying the exceptions of
insufficiency of citation and service of process. Quoting extensively from
Velasquez, this Court observed:
Like the instant matter, the plaintiff in Velasquez requested service on
a state-employed physician, the only named defendant in the action, at
his work address, rather than through one of the mandated agents for
service of process. The Court noted that “[a] suita against a qualified
state health care provider requires service to be effected on: (1) the
head of the department for the [Board of Supervisors]; (2) the Office
of Risk Management; [and] (3) the Attorney General of Louisiana.”
Id., p. 4, 151 So.3d at 814. The Court likewise cited Barnett v.
Louisiana State Univ. Med. Ctr. Shreveport, 02-2576, p.1 (La.
2/7/03), 841 So.2d 725, 726 for the principle that “[P]laintiffs are
strictly held to the obligation of serving the correct agent for service
of process, [ ] as well as to the obligation of serving the named state
defendants within the time period specified by La. R.S.
13:5107(D)(1).” Id., pp. 4-5, 151 So.3d at 814.
Wright, 18-0825, pp. 4-5, 258 So.3d at 848-49 (emphasis added).
Notably, although no exception of prescription was filed in this case in
Wright, this Court recognized that “[n]ecessarily, timeliness is an issue.” Id. at n. 3
(emphasis in original). In accordance with the finding that the plaintiff failed to
plaintiff’s contention that she [was] suing Dr. Chesson in his individual capacity.” Velasquez,
2013-1260, p. 5, 151 So. 3d at 815, n. 5.
4
Notably, the Louisiana Supreme Court denied writs. Velasquez v. Chesson, 14-2361 (La.
2/27/15) 159 So. 3d 1067.
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request service on the proper parties within ninety days, the Wright Court
determined that service was thus not requested on all named defendants within
ninety days, because to hold otherwise, a plaintiff could request service on anyone
within ninety days and assert compliance with Article 1201(C):
Clearly, service of process in this matter was not requested on
the proper party/parties. Thus, service was not requested “on all
named defendants within ninety days of commencement of the
action.” La. C.C.P. art. 1201 (C). To hold otherwise would be to allow
a plaintiff to request service on anyone within 90 days of filing an
action and technically comply with the requirement of the article.
Id. at n. 3 (emphasis in original).
The plain language of La. R.S. 13:5107(D)(1) states that service “shall” be
requested on at least one of the three specified State entities within ninety days of
the commencement of the action. Thus, according to the plain language of the
statute and following this Court’s relevant, applicable jurisprudence,5 we find that
the Plaintiff failed to comply with the service requirements within the mandated
time period. Thus, we find that the trial court erred in denying Relators’ exception
of prescription.
CONCLUSION
Due to the Plaintiff’s failure to request service on a State agency within
ninety days of commencement of the action, we grant the Relators’ writ, reverse
the trial court’s judgment, and dismiss the Respondent’s claims with prejudice.
WRIT GRANTED; RULING REVERSED
5
Also, in this Court’s recent en banc decision in Brown v. Chesson, 19-0447 (La. App. 4 Cir.
4/24/20), __ So.3d __, 2020 WL 2568460, this Court upheld and relied on the holdings in
Velasquez and Wright, in holding that the trial court erred in denying defendant’s exceptions of
insufficiency of citation and service.
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